What are the requirements for authentication of electronic communications? Is past-use of an email address enough to authenticate an electronic communication? Or will a court require more? These are a few of the questions answered by the Eastern District of North Carolina in U.S. v. Shah.

U.S. v. Shah is a federal criminal prosecution of a former Information Technology Manager at Smart Online, Inc. The government alleges that, after the defendant stopped working for Smart Online, Inc., he intentionally accessed his former company’s computer network and caused significant damage. During the pretrial proceedings, a dispute arose as to the admissibility of certain evidence.

The government had obtained information from Google, Inc. via a third-party subpoena. Specifically, the government obtained more than one gigabyte of data associated with the e-mail address [email protected]. The government sought to admit certain e-mails and chat conversations, which were sent and received from this e-mail address, as evidence in the criminal prosecution against the defendant. The government then filed a motion in limine for pretrial determination of the admissibility of this evidence.

The relevant e-discovery issue here relates to the authentication of these electronic communications. In analyzing the government’s motion in limine, the Court found that the government may not rely exclusively on defendant’s prior use of the email address to authenticate the documents. The Court went on to state that “Both email and electronic chats are faceless means of communication, with users identified by an email address or username. The recipient cannot, simply by looking at the email address or username provided in the document, readily identify the true identity of a message’s sender.”

The Court ultimately found that authentication of these electronic communications requires more than simply past-use of the email address at issue. Rather, the Court held that the government must “make sufficient showing that the context surrounding or content of these emails and chats connects defendant to them.” In sum, the Court employed a more stringent standard for authentication of electronic communications than it would for “ordinary” evidence.

Kevin DeMaio received a B.A. in History from Princeton University in 2012. He will receive his J.D. from Seton Hall University School of Law in 2016.

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